Refusing children bail for their ‘own protection’ is compatible with article 5 ECHR, rules Court of Appeal

Archer v The Commissioner of Police of the Metropolis [2021] EWCA Civ 1662 (12 November 2021)

Summary

The Court of Appeal has recently upheld the High Court decision that Section 38 of the Police and Criminal Evidence Act 1984 (PACE) is not incompatible with Article 5 of the European Convention on Human Rights (ECHR) insofar as it purports to authorise the detention of children for their own protection, in the case of Archer v Commissioner of Police of the Metropolis [2021] EWCA Civ 1662.

Factual background

The Appellant appealed the judgment of the High Court (Chamberlain J) [2020] EWHC 1567 (QB).

The Appellant, then 15, was arrested for violent disorder and possession of an offensive weapon. Following his arrest, he was detained, and charged. Bail was refused on the basis that continued detention was necessary for the Appellant’s own interests pursuant to section 38(1)(b)(ii) of PACE. Section 38(1)(a)(vi) of the Police and Criminal Evidence Act 1984 (PACE) permits a custody officer to refuse bail in the case of children for their ‘own protection’, where a custody officer has reasonable grounds for believing that detention is necessary for that purpose.

It is important to note that there was no challenge to the lawfulness of the arrest or detention up to charge in this case. The dispute between the parties at first instance was narrow and formulated as such: is section 38(1)(b)(ii) of PACE compatible with Article 5, the right to liberty? Was the Appellant’s detention overnight contrary to Article 5? The Appellant sought to argue that neither ‘own protection’ or ‘own interests’ appeared in the permitted exceptions in Article 5 and so, on the Appellant ’s case, these could not justify detention. The claim was dismissed by Chamberlain J in the High Court. Detention for ‘own interests’ or ‘own protection’ under section 38(1)(a)(vi) and (b)(ii) of PACE was not automatically incompatible with Article 5. It was acknowledged that the exceptions in Article 5(a)-(f) were to be narrowly construed but that should not prevent detention considered to be in the detainee’s ‘own interests’ or for their ‘own protection’ when the additional purpose of detention was to bring a detainee to court (Article 5(1)(c)).

The Appellant appealed arguing that the High Court decision had given an overly expansive interpretation to the words “effected for a purpose of bringing him before a competent legal authority” in Article 5(1)(c). Liberty and Just for Kids law, acting as interveners supported the Appellant on this point, reflecting on international as well as domestic principles regarding the best interests of the child in pre-trial detention.

The decision

The appeal was dismissed. The Court found that, where there is a reasonable suspicion of a person having committed an offence, detention on own protection or own interest grounds is not inherently contrary to Article 5. However, the Court emphasised that in the case of a child, pre-trial detention should only be used as a last resort, noting the following points:

  1. Police detention of children should be as short as possible;
  2. Such detention must be necessary;
  3. Children held at the police station should be kept apart from adults.

Detention of a child under section 38 (1)(b)(i) is not incompatible with Article 5 and the case in question was therefore lawful.

Commentary

This decision preserves a custody sergeant’s ability to refuse bail for a detainee’s (including a child detainee’s) ‘own protection’ or ‘own interests’ in the appropriate circumstances. However, it importantly reminds us that detention after charge, particularly in the case of children, should be a measure of last resort with all alternatives having been considered.

It is worth noting that there was an additional factor that played a role in the sergeant’s decision to detain in this case, namely the substantial risk that the Appellant, if released, may also inflict violence upon others. This is reiterated throughout the judgment, yet the decision is still framed as one applicable even where bail is only refused for a detainee’s own interests or protection. 

Liberty and Just for Law Kids, who both intervened in the case, had warned that being locked in a police cell is a highly traumatic experience, and that children from marginalised backgrounds – especially young Black boys – are most likely to be affected. This intervention is part of Just for Kids’ Law “No child in cells” campaign which has seen the organisation bring a series of legal challenges against police forces and local authorities concerning the unlawful detention of children in police cells overnight, since 2016.

 

Written by
Niki Hadjivasiliou, Trainee Solicitor, Just for Kids Law